T.C SUPREME COURT 19.Legal Department, Base: 2016/ 9422 Decision: 2018 / 1089 Decision Date: 01.03.2018
ABSTRACT: It is not correct to base the legal interpretations in expert reports issued by the court in violation of the provisions of the contract and the law on the judgment. The work to be done by the court, in accordance with the provisions of the contract of the defendant violates the provisions of the contract and the contract liability is determined according to whether the material facts tuition refund that is due to short-term arrest, because of force majeure, it does not pose the business to close, the plaintiff from the defendant the contribution that can be claimed, and the amount of penalty in terms of a consultant or expert witness report on the current financial and economic calculations based on the requested also evaluated whether the defendant will be the undoing of penalties, if the requested criminal condition is of a nature that will cause the defendant’s economic ruin, it should consist in making a decision on the appropriate conclusion to be reached by making an appropriate discount. It is against the procedure and the law to decide to dismiss the case by erroneous assessment without considering the aspects described above.
(6098 P. K. m. 136)
Case: At the end of the trial of the receivables case between the parties, the file was examined, the file was discussed and considered as necessary upon appeal by the plaintiff’s attorney within the period of the decision to dismiss the case for the reasons written in the dec.
decision
The plaintiff’s attorney, the plaintiff and the defendant 01.04.2012 between the firm-years between 01.04.2016 to be valid and open point-of-sale agreement that was signed, in this context, made a contribution to the defendant, but the defendant’s transfer to a third person in less than a year out of the workplace of the reasons, citing the case of demand arising from the contract without prejudice to the rights of termination of the contract and on the contribution made to the defendant discounted price 92.056,00 TL 80.437 and discounted penalty,the decision to demand and the defendant has prosecuted 00 USD from the collection.
The defendant’s deputy requested the dismissal of the case, arguing that his client was arrested shortly after the signing of the contract, that he was on the verge of bankruptcy due to this unfortunate incident, that he had to close his workplace, that his client did not close his workplace arbitrarily, that the amount of the requested criminal requirement was excessive and would cause his client’s ruin.
The court decries that a contract has been signed between the plaintiff company and the defendant, that the defendant has been arrested for membership in an organization established for the purpose of committing a crime in the first year of the contract, that he has terminated his activity while his detention is in progress, that the termination date of activity corresponds to the period of detention, 6 of the contract. in violation of Article 3 of the workplace. the performance of the contract becomes impossible due to the fact that it is not transferred to a person, it is not certain how long the detention will last, in this case the defendant has no fault, TBK. m. in 136, it was regulated that the debt would expire if perfect performance was impossible, it was impossible to ask for a criminal condition because the debt had expired due to impossibility, the plaintiff delivered 200 kegs of beer to the defendant, TBK. m. In case of the extinction of the debt in accordance with 136, mutual debt loads of the parties of the contracts that they should put each other back in accordance with the provisions of unjust enrichment, goodwill is not obliged to give back to yourself from zenginleseni no reason, the first expert of the defendant as stated in the report of the capital is zero, in other words, the case dismissed on the grounds that it wasn’t a thing in your hand is granted, the judgment was appealed by the plaintiff by counsel.
It is not right that legal interpretations in expert reports prepared by the court in violation of the provisions of the contract and the law should be based on the provision. The work to be done by the court, in accordance with the provisions of the contract of the defendant violates the provisions of the contract and the contract liability is determined according to whether the material facts tuition refund that is due to short-term arrest, because of force majeure, it does not pose the business to close, the plaintiff from the defendant the contribution that can be claimed, and the amount of penalty in terms of a consultant or expert witness report on the current financial and economic calculations based on the requested also evaluated whether the defendant will be the undoing of penalties, if the requested criminal condition is of a nature that will cause the defendant’s economic ruin, it should consist in making a decision on the appropriate conclusion to be reached by making an appropriate discount. It is against the procedure and the law to decide to dismiss the case in writing by erroneous assessment without taking into account the aspects described above.
CONCLUSION: It was decided unanimously on 01/03/2018 that the provision should be OVERTURNED for the benefit of the appellant plaintiff for the reasons described above, and that the advance fee should be returned to the plaintiff upon request. (¤¤)
